"Hand me up the deed," said the judge; and inspected it minutely for a minute or two, holding it up, once or twice, to the light.
"Has any one a magnifying-glass in court?" inquired the Attorney-General, with a look of increasing anxiety. No one happened to have one.
"Is it necessary, Mr. Attorney?" said Lord Widdrington, handing down the instrument to him with an ominous look.
"Well—you object, of course, Mr. Subtle—as I understand you—that this deed is void, on account of an erasure in a material part of it?" inquired Lord Widdrington.
"That is my objection, my Lord," said Mr. Subtle, sitting down.
"Now, Mr. Attorney," continued the judge, turning to the Attorney-General, prepared to take a note of any observations which he might offer. The spectators—the whole court—were aware that the great crisis of the case had arrived; and there was a sickening silence. The Attorney-General, with perfect calmness and self-possession, immediately addressed the court in answer to this very critical and unexpected objection. That there was an erasure, which, owing to the hurry with which the instrument had been examined, had been overlooked, was indisputable. The Attorney-General's argument was, first, that the erasure was in a part not material; secondly, that even if in a material part of the deed, it would not be avoided, but the alteration would be presumed to have taken place before the execution of the deed.[33] It was easy to see that he spoke with the air of a man who argues contra spem. What he said, however, was pertinent and forcible; the same might be said of Mr. Sterling and Mr. Crystal; but they were all plainly gravelled. Mr. Subtle replied with cruel cogency.
"Well," said Lord Widdrington, when Mr. Subtle had concluded, "I own I feel scarcely any doubt upon the matter; but as it is certainly of the greatest possible importance in the present case, I will just see how it strikes my brother Grayley." With this he took the deed in his hand and quitted the court. He touched Mr. Aubrey, in passing to his private room, holding the deed before him! After an absence of about ten minutes, Lord Widdrington returned.
"Silence! silence there!" bawled the crier; and the bustle had soon subsided into profound silence.
"I think, and my brother Grayley agrees with me," said Lord Widdrington, "that I ought not to receive this deed in evidence, unless the erasure occurring in an essential part of it be first accounted for. Unless, therefore, you are prepared, Mr. Attorney, with any evidence of that kind, I shall not receive the deed." The Attorney-General bowed, in silence, to his Lordship.
There was a faint buzz all over the court—a buzz of excitement, anxiety, and disappointment; during which the Attorney-General consulted for a moment or two with his juniors.
"Undoubtedly, my Lord," said he at length, "we are not prepared with any evidence to explain a circumstance which has taken us entirely by surprise. After this length of time, my Lord, of course"–
"Certainly—it is a great misfortune for the parties—a great misfortune. Of course you tender the deed in evidence?" he continued, taking a note.
"We do, my Lord, certainly," replied the Attorney-General; and sitting down, he and his juniors took a note of the decision; Lord Widdrington and the Attorney-General's opponents doing the same.
You should have seen the faces of Messrs. Quirk, Gammon, and Snap, as they looked at Mr. Parkinson, with an agitated air, returning the rejected deed to the bag from which it had been lately taken with so confident and triumphant an air!—The remainder of the case, which had been opened by the Attorney-General on behalf of Mr. Aubrey, was then proceeded with; but in spite of all their assumed calmness, the disappointment and distress of his counsel were perceptible to all. They were now dejected—they felt that the cause was lost, unless some extraordinary good fortune should yet befall them. They were not long in establishing the descent of Mr. Aubrey from Geoffrey Dreddlington. It was necessary to do so; for grievously as they had been disappointed in failing to establish the title paramount, founded upon the deed of confirmation of Mr. Aubrey, it was yet an important question for the jury, whether they believed the evidence adduced by the plaintiff to show title in himself.
"That, my Lord, is the defendant's case," said the Attorney-General as his last witness left the box; and Mr. Subtle then rose to reply. He felt how unpopular was his cause; that almost every countenance around him bore a hostile expression. Privately, he loathed his case, when he saw the sort of person for whom he was struggling. All his sympathies (he was a very proud, haughty man) were on behalf of Mr. Aubrey, whom by name and reputation he well knew, and with whom he had often sat in the House of Commons. Now, conspicuous before him, sat his little monkey-client, Titmouse—a ridiculous object; and calculated, if there were any scope for the influence of prejudice, to ruin his own cause by the exhibition of himself before the jury. That was the vulgar idiot who was to turn the admirable Aubreys out of Yatton, and send them beggared into the world! But Mr. Subtle was a high-minded English advocate; and if he had seen Miss Aubrey in all her loveliness, and knew that her all depended upon the success of his exertions, he could hardly have exerted himself more strenuously than he did on the present occasion. And such, at length, was the effect which that exquisitely skilful advocate produced, in his address to the jury, that he began to bring about a change in the feelings of most around him; even the eye of scornful beauty began to direct fewer glances of indignation and disgust upon Titmouse, as Mr. Subtle's irresistible rhetoric drew upon their sympathies in that young gentleman's behalf. "My learned friend, the Attorney-General, gentlemen, dropped one or two expressions of a somewhat disparaging tendency," said Mr. Subtle, "in alluding to my client, Mr. Titmouse; and shadowed forth a disadvantageous contrast between the obscure and ignorant plaintiff, and the gifted defendant. Good heavens, gentlemen! and is my humble client's misfortune to become his fault? If he be obscure and ignorant, unacquainted with the usages of society, deprived of the blessings of a superior education—if he have contracted vulgarity, whose fault is it?—Who has occasioned it? Who plunged him and his parents before him into an unjust poverty and obscurity, from which Providence is about this day to rescue him, and put him in possession of his own? Gentlemen, if topics like these must be introduced into this case, I ask you who is accountable for the present condition of my unfortunate client? Is he, or are those who have been, perhaps unconsciously, but still unjustly, so long revelling in the wealth which is his? Gentlemen, in the name of everything that is manly and generous, I challenge your sympathy, your commiseration, for my client." Here Titmouse, who had been staring open-mouthed for some time at his eloquent advocate, and could be kept quiet no longer by the most vehement efforts of Messrs. Quirk, Gammon, and Snap, rose up in an excited manner, exclaiming, "Bravo! bravo, bravo, sir! 'Pon my life, capital! It's quite true—bravo! bravo!" His astounded advocate paused at this unprecedented interruption. "Take the puppy out of court, sir, or I will not utter one word more," said he, in a fierce whisper to Mr. Gammon.
"Who is that? Leave the court, sir! Your conduct is most indecent, sir! I have a great mind to commit you, sir!" said Lord Widdrington, directing an awful look down to the offender, who had turned of a ghastly whiteness.
"Have mercy upon me, my Lord! I'll never do it again," he groaned, clasping his hands, and verily believing that Lord Widdrington was going to take the estate away from him.
Snap at length succeeded in getting him out of court, and after the excitement occasioned by this irregular interruption had subsided, Mr. Subtle resumed:—
"Gentlemen," said he, in a low tone, "I perceive that you are moved by this little incident; and it is characteristic of your superior feelings. Inferior persons, destitute of sensibility or refinement, might have smiled at eccentricities, which occasion gentlemen like yourselves only feelings of greater commiseration. I protest, gentlemen"– his voice trembled for a moment, but he soon resumed his self-possession; and, after a long and admirable address, sat down, confident of the verdict.
"If we lose the verdict, sir," said he, bending down and whispering into the ear of Gammon, "we may thank that execrable little puppy for it." Gammon changed color, but made no reply.
Lord Widdrington then commenced summing up the case to the jury with his usual care and perspicacity. Nothing could be more beautiful than the ease with which he extricated the facts of the case from the meshes in which they had been alternately involved by Mr. Subtle and the Attorney-General. As soon as he had explained to them the general principles of law applicable to the case, he placed before them the facts proved by the plaintiff, and then the answer of the defendant: every one in court trembling for the result, if the jury should take the same view which he felt compelled himself to take. The judge suggested that they should retire to consider the case, taking with them the pedigrees which had been handed in to them; and added that, if they should require his assistance, he should remain in his private room for an hour or two. Both judge and jury then retired, it being about eight o'clock. Candles were lit in the court, which continued crowded to suffocation. Few doubted which way the verdict would go. Fatigued as must have been most of the spectators with a two days' confinement and excitement,—ladies as well as gentlemen,—scarce a person thought of quitting before the verdict had been pronounced. After an hour and a half's absence, a cry was heard from the bailiff in whose charge the jury had retired—"Clear the way for the jury;" and one or two officers, with their wands, obeyed the directions. As the jury were re-entering their box, struggling with a little difficulty through the crowd, Lord Widdrington resumed his seat upon the bench.
"Gentlemen of the jury, have the goodness," said the associate, "to answer to your names.—Sir Godolphin Fitzherbert"– and, while their names were thus called over, all the counsel took their pens, and, turning over their briefs with an air of anxiety, prepared to indorse on them the verdict. As soon as all the jurymen had answered, a profound silence ensued.
"Gentlemen of the jury," inquired the associate, "are you agreed upon your verdict? Do you find for the plaintiff, or for the defendant?"
"For the plaintiff," replied the foreman; on which the officer, amid a kind of blank dismayed silence, making at the same time some hieroglyphics upon the record, muttered—"Verdict for the Plaintiff.—Damages, one shilling. Costs, forty shillings;" while another functionary bawled out, amid the increasing buzz in the court, "Have the goodness to wait, gentlemen of the jury. You will be paid immediately." Whereupon, to the disgust and indignation of the unlearned spectators, and the astonishment of some of the gentlemen of the jury themselves—many of them the very first men of the county—Snap jumped up on the form, pulled out his purse with an air of wild exultation, and proceeded to remunerate Sir Godolphin Fitzherbert and his companions with the sum of two guineas each. Proclamation was then made, and the court adjourned till the next morning.
NOTES
Note 1 Page 11.
Thomas De Quincey—a man whose genius and diversified and profound acquirements constitute him one of the most remarkable men of the age; and the book quoted in the text is worthy of him.
Note 2 Page 20.
The legislature hath since shown many indications of agreement with the opinion of my unhappy swell: having lately abolished arrest on mesne process altogether, as affording creditors too serious a chance of preventing the escape of a fraudulent debtor; and having still more recently made a step towards the abolition of arrest on final process! [1844.]
Note 3 Page 60.
[Greek:Τοῡ καὶ ἀπὸ γλώσσης μέλιτος γλυκίων ῥέεν αὐή:Tou_ kai\ a)po\ glô/ssês me/litos glyki/ôn r(e/en au)ê/]
Note 4 Page 107.
Blackstone's Commentaries, vol. iv. pp. 134-5.
Note 5 Page 108.
Blackstone, vol. iii. p. 400, where it is stated, however, that "that practice is now disused."
Note 6 Page 110.
Blackstone's Commentaries, vol. iv. p. 135.
Note 7 Page 113.
By a very recent statute (6 and 7 Vict. c. 73, §§ 37, 43)—passed in 1843—salutary alterations have been made in the law regulating the taxation of the bills of attorneys and solicitors. Except "under special circumstances," a client cannot now have his attorney's or solicitor's bill taxed, after the lapse of twelve months since it was delivered. If as much as one-sixth of the bill be struck off, the attorney or solicitor must pay the costs of the operation; if less than one-sixth, the client will have that satisfaction.
Note 8 Page 122.
This was written about the year 1838-9.
Note 9 Page 124.
This mode of treating the remains of a felo de se was (on the 8th July 1823) abolished by Act of Parliament (stat. 4 Geo. IV). The remains of a felo de se are ordered by that act to be buried privately in the churchyard, but without the performance of any rites of Christian burial. The Prayer-book also prohibits the "office for the burial of the dead from being used for any that have laid violent hands upon themselves."
Note 10 Page 160.
I suppose myself to be alluding here to a very oppressive statute, passed to clip the wings of such gentlemen as Mr. Snap, by which it is enacted that, in actions for slander, if the jury find a verdict under forty shillings, e. g. as in the case in the text, for one farthing, the plaintiff shall be entitled to recover from the defendant only as much costs as damages, i. e. another farthing; a provision which has made many a poor pettifogger sneak out of court with a flea in his ear. Since this was written, a still more stringent statute hath been made, which, 'tis to be hoped, will put down the nuisance.
Note 11 Page 196.
"Can the author of Ten Thousand a-Year," asked some anonymous person during its original appearance—"point out any class of Dissenters who allow their members to frequent theatres?" The author believes that this is the case with Unitarians—and also with many of the members of other Dissenting congregations—especially the younger members of even the stanchest Dissenting families.
Note 12 Page 212.
This fearful-looking word, I wish to inform my lady-readers, is an original and monstrous amalgamation of three or four Greek words—[Greek:κυανο-χαιτ-ανθρωπο-ποιων:kyano-chait-anthrôpo-poiôn]—denoting a fluid "which can render the human hair black." Whenever a barber or perfumer determines on trying to puff off some villanous imposition of this sort, strange to say, he goes to some starving scholar, and gives him half-a-crown to coin a word like the above; one which shall be equally unintelligible and unpronounceable, and therefore attractive and popular.
Note 13 Page 243.
"Vitas hinnuleo me similis, Chloë,
Quærenti pavidam–
Matrem.
—– et corde et genibus tremit."—Hor. i. 23.
Note 14 Page 264.
See ante, p. 138.
Note 15 Page 307.
So much curiosity has been excited among lay readers in this country and in America, and also among professional persons in France and Germany, as to the real nature of the species of action mentioned in the text, that the author is induced here to give some further account of a matter which enters so considerably into the construction of this story. The action of Ejectment is described with minute accuracy in the text; has been in existence for at least five hundred years, (i. e. since the close of Edward II., or beginning of Edward III., A. D. 1327;) and its venerable but tortuous fiction has been scarcely even touched by the "amending hand," which lately (1834) cut away so many cumbrous, complicated, and quasi obsolete portions of the law of action, (see Stat. 3 and 4 Will. 4, c. 27, § 36.) The progress of this action is calculated to throw much light on some of our early history and jurisprudence. See an interesting sketch of it in the first chapter of Mr. Sergeant Adams' Treatise on Ejectment. It was resorted to for the purpose of escaping from the other dilatory, intricate, and expensive modes of recovering landed property anciently in existence. The following is the description given of it by Lord Mansfield—and is equally terse and correct, and applicable to the present mode of procedure. "An Ejectment is an ingenious fiction for the Trial of Titles to the possession of Land. In form it is a trick between two, to dispossess a third by a sham suit and judgment. The artifice would be criminal, unless the Court converted it into a fair trial with the proper party. The control the Court have over the judgment against the Casual Ejector, enables them to put any terms upon the plaintiff which are just. He was soon ordered to give notice to the tenant in possession. When the tenant in possession asked to be admitted defendant, the Court was enabled to add Conditions; and therefore obliged him to allow the fiction, and go to Trial on the real merits."—(Fair Claim v. Sham Title,[*] 3 Burr. 1294.) This action is now, in effect, the only direct common-law remedy for the recovery of land in England and Ireland; in many of the United States of America the action of Ejectment is retained—"with its harmless, and—as matter of history—curious and amusing English fictions."—(4 Kent's Comment. p. 70, note e:) but in New York, the action of Ejectment is "stripped of all its fictitious parts."—(Id. ib.)
[*]These fantastical names are now almost invariably abandoned for those of "John Doe" and "Richard Roe."
Note 16 Page 309.
Blackstone's Commentaries, vol. iii. App. pp. ix. x.
Note 17 Page 310.
"A warranty will not extend to guard against defects which are plainly and obviously the object of one's senses: as if a horse be warranted perfect, and wants either a tail, or an ear: unless the buyer in this case be blind."—3 Blackst. Comm. 166.
Note 18 Page 310.
On the 22d August, 1843, (since the publication of this work,) a brief but most important statute (6 and 7 Vict. c. 85) was enacted, "for improving the Law of Evidence"—the chief object of which was, to remove all such difficulties as that which formed the subject of Mr. Parkinson's inquiries. Witnesses are now no longer "incompetent" to give evidence by reason of crime or of any interest which they may have in, or in respect of, the subject-matter of the action.
Note 19 Page 346.
Whether Mr. Aubrey was justified in doing this, under his circumstances, is a question which the author has seen, and heard, several times keenly discussed. It is surprising how much may be said on both sides of the question, by ingenious casuists.
Note 20 Page 405.
For this glorious and inestimable safeguard of the liberty of the subject, we are indebted to the ancient common law of England, strengthened from time to time by the legislature, and now made secure against the insidious encroachments of tyranny. The chief statute passed with this view is known as The Habeas Corpus Act (31 Car. II. c. 2), and "has been incorporated into the jurisprudence of every state in the Union" in America.—Story, Commentaries on the Constitution of the U. S., vol. iii. p. 208.
"It is a very common mistake," says Mr. Hallam, and the Lord Chief-Justice of the Queen's Bench had occasion, during Michaelmas Term 1844, publicly to make a similar observation, "not only among foreigners, but many from whom some knowledge of our constitutional laws might be expected, that the statute of Charles II. enlarged in a great degree our liberties, and forms a sort of epoch in their history; but though a very beneficial enactment, it introduced no new principle, nor conferred any right upon the subject.... It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided in Magna Charta (if, indeed, not much more ancient,) that the statute of Charles II. was enacted; but to cut off the abuses by which the government's lust of power, and the servile subtlety of crown lawyers, had impaired so fundamental a privilege."—3 Hall. Const. Hist., pp. 16, 17.
Note 21 Page 421.
The general character of the Newspaper Press, both in London and the country, has so greatly improved of late years, as (with a very few despicable exceptions) to render the appearance now-a-days, of such a paragraph as that in the text, exceedingly rare. The Press is now, in most instances, presided over by educated and gifted gentlemen. It was far otherwise in 18—(the period named in the text.)
Note 22 Page 433.
Before perusing this opinion, the reader should refer to the pedigree, post 441; without which the opinion will not be fully understood.
Note 23 Page 435.
See the note (24) on page 437.
Note 24 Page 437.
Till within a few years before the period in question, the law of England regarded the act done by Mr. Steggars as amounting only to a breach of trust, and consequently subjecting him to no criminal liability; on the ground that the £700 never having been actually in his master's possession, could not be the subject of a felonious taking. The alarming consequences of this doctrine led to the passing of stat. 39 Geo. III. c. 85, [passed on the 12th July 1799,] which declared such an act of embezzlement to be felony, punishable with fourteen years' transportation: this was lately repealed, but re-enacted by stat. 7 and 8, Geo. IV. c. 29, § 47, [passed on the 21st June, 1827,] on the occasion of consolidating that branch of the criminal law.—See 4 Coleridge's Blackst. Comment. p. 231 (note).
Note 25 Page 442.
The popular maxim that "possession is nine-tenths of the law," is founded on the salutary and reasonable doctrine of the law, that the party in possession of property is presumed to be the owner until the contrary shall have been proved. Consider how intolerable, and, in fact, destructive of civil society would be an opposite rule—if every one in the enjoyment of property were liable to be called upon to explain to any one challenging his right, how that right had been acquired! By the operation of the rule laid down in the text, a defendant in ejectment may (except in the case of landlord and tenant) always defeat the action, simply by showing the real title to be in some third party—without showing that the defendant holds possession with the consent, or under the authority of the real owner.—(Roe v. Harvey, 4 Burr. 2484; Doe v. Barber, 2 T. R. 749.) The defendant's evidence is thus altogether confined to falsifying his adversary's proofs, or rebutting the presumptions which arise out of them.—Adams on Ejectment, p. 319.—(3d Ed.)
Note 26 Page 443.
See the note to Vol. II., Chapter V.
Note 27 Page 443.
Lynx is here glancing at a rule of the Roman law on a point of great difficulty, interest, and importance—i. e. where two persons above the age of puberty perished by the same accident, the younger was presumed to have been the survivor; but if one was under the age of puberty, the other was presumed to have been the survivor.—(Dig. lib. 34, tit. 5, §§ 9, 22, 23.) It is very curious to see how this question is dealt with in modern times. The Code Civile (in France) adjusts the presumption to specific periods of life. If those who perished were all under 15 years of age, the eldest is presumed to have survived; if all above 60 years, the youngest. If some under 15, and others above 60, the former shall be presumed to have survived. If all were between 15 and 60 years of age, the male, (when the ages are equal, or within a year of being so) shall be presumed the survivor. If of the same sex, that presumption shall be admitted which opens the succession in the order of nature—of course the younger being presumed to have survived the elder.—(Code Civ. §§ 720-722.) It has been objected, that, though these rules are generally equitable, they are imperfect: for a man above sixty ought surely to be held to have survived a mere infant; and no provision is made for the case of persons under 15, and under 60 years of age perishing together. By the Mohammedan law of India, "when relations perish together, it is to be presumed that they all died at the same moment, and the heir of each immediately succeeds." The difficulty of the case arises, of course, from the circumstance of there being no evidence whatever as to the actual fact of survivorship. Our English law has not adopted any definite rule on the subject, but leans in favor of the survivorship of the party possessed of the property in dispute; and some regard seems to be had to the probability of the survivorship of the stronger party. Several very interesting cases of this kind have arisen in this country; and, generally speaking, our courts appear to have required some evidence of the fact. A singular case occurred in Queen Elizabeth's time, (1596.) Father and son were hanged at the same time, in one cart; being joint tenants of property, which, on their death, was to go to the son's heirs. According to one report (Noy) the father's feet were seen moving after the son's death; but other witnesses swore to the son's "shaking his legs" after his father's death. This the jury believed; found that the son survived; and his widow was therefore held entitled to her dower!—(Broughton v. Randall, Cro. El., p. 502.)
Note 28 Page 443.
Chapter X., ante, p. 411.
Note 29 Page 470.
See the note prefixed to Chapter V. Vol. II., for a full explanation of the above, and another important legal topic introduced into this work.
Note 30 Page 477.
Not many years ago, the fate of an important case turned upon the existence of a tombstone: and a forged one was produced in court!—The validity of a great Peerage case is at this moment depending upon the genuineness of one of these dumb and gloomy witnesses. [1844.]
Note 31 Page 485.
When the Judges of Assize preside in the Crown side (i. e. in the Criminal Court,) they wear their scarlet and ermine robes, and full-bottomed wigs.
Note 32 Page 486.
This is a step often taken in trials of importance, when the counsel for either party apprehends danger to his client, from his opponent's witnesses remaining in court and hearing all the evidence which they are afterwards called to contradict. Either counsel has a right thus to exclude witnesses. The Court usually, in such cases, orders all the witnesses to withdraw.
Note 33 Page 499.
See, for a discussion of this point, the preliminary note to Vol. II. ch. v.